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NLU VCs, Shamnad vow to fight for law teachers’ right to litigate (and potentially share 60% of their billings with university)

Legally Blonde’s Prof Callahan: Model litigating prof (ignoring the metoo-ey bits)
Legally Blonde’s Prof Callahan: Model litigating prof (ignoring the metoo-ey bits)

The Consortium of National Law Universities’ executive committee (EC), set up in 2014, has decided to lobby the BCI to allow full-time law teachers to also practise law.

If this were allowed, the consortium’s EC, which consists of vice chancellors (VCs) of all national law schools and is currently chaired by Nalsar Hyderabad VC Prof Faizan Mustafa, said that law teachers should primarily act pro bono in worthy and important human-rights- and constitution-type cases.

But, if law teachers were to make money in any future legal practice, 60% of teachers’ earned fees should go to their employee university, according to the proposal.

While this could open up an interesting new revenue source for cash-strapped NLUs, we wonder if a more entrepreneurial NLU could consider competing with law firms under the model...

Probably not, though. In a sensible sop to appease any members of the legal profession who might fear an influx from the ivory towers taking away their jobs, as well as students who might complain about their teachers’ absences, the VCs also added that they would not allow any NLU teacher from appearing in court more than three times per month and to spend more than 15 hours a week on their hypothetical legal practice.

In other jurisdictions, particularly in the US, top academics regularly appear in the courts or draft legal opinions for law firms, and can command high fees. In India, there have only been a few academics who have been active in the field.

Update 21:32: We have learnt that the consortium’s move follows Prof Shamnad Basheer having circulated a petition to law school vice chancellors and professors on 19 February. The Bok visiting professor of law at the University of Pennsylvania and honorary chair professor at Nirma University was seeking their support for his petition to the BCI to open up litigation to academics (see copy of petition below). His email stated:

the nature of law teaching is such that there is no conflict between the teaching of law and the practice of it. In fact, one aids the other! We also point to the paradox of permitting practising lawyers to teach in law schools (upto 21 hours a week!) whilst at the same time, preventing law teachers from even practising a single hour in court!

This petition already has the support of renowned academic leaders in our space including Prof Madhav Menon, Prof Faizan Mustafa, Prof Venkat Rao etc. And we are thankful to them for lending their name to the cause.

First things first

For NLU teachers to get there may be an uphill struggle though, requiring reforming the existing rules.

Rule 49 of the Bar Council of India (BCI) Rules currently bans full-time salaried employees, such as law professors, from practising law.

The EC unanimously voted at its last meeting on 19 February 2019 to push for amendment of those rules.

“We are going to write to the BCI also and create some sort of lobbying,” Mustafa explained about the process they would follow. “And, if it doesn’t happen, then go to the court [to argue] that the inclusion of law teachers with any other employee is arbitrary. We [law teachers] are different from other employees.”

The consortium argued in a joint statement: “Not allowing law teachers to practise in the courts of law is harming the legal system as lawyers and judges [...] can contribute meaningfully to the legal system.”

“Law teachers are a separate class in themselves and should not be treated like any other salaried employee,” it added, emphasising that the country “badly needs litigation lawyers and there is a need to bridge the gap between law in books and law in action”.

The move to give law teachers more practical litigation experience, would also encourage and attract “bright students of NLUs to take up litigation as their career”, according to the statement (NLU students’ predilection for corporate jobs has been bemoaned by VCs since Prof Madhava Menon, though equally celebrated by many NLU students who do love the lucre).

Offering a clinical legal education course would also be mandatory for any practising teachers, the EC proposed.

Idealistically, the “executive committee also expressed the hope that most of the cases taken up by law teachers would ideally involve violation of human rights / seek overruling of wrong decisions by the courts / interpretation of Constitution”:

It is expected that these teachers would appear pro-bono. However, if fee is charged, it would be shared between the concerned University and the Law Teacher in the ratio of 60:40.

Mustafa said that there had been a case in the Delhi high court in the 70s or 80s that held law teachers were not allowed to practice, so the VCs would seek to have that overturned. He said that the recent rejection by the Supreme Court of the petition seeking ban on politicians appearing in court, could be helpful.

“In any case, it would be fundamentally pro bono and human rights and constitutional interpretation and appeal of wrong decisions: that should be open to law teachers,” Mustafa added.

[documentcloudShamnad Basheer petition to permit academics to practice law

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